CATCHWORDS: Objection to production of documents by company served with a "notice" of non-party disclosure - documents said to be confidential and relate to company's trading and methods - appellant adverse submitter a competitor - whether production (concededly available in enforcement proceedings) should be produced - production ordered, subject to a "Fielder Gillespie" order - company was lessee of and conducted its business in premises of the co-respondent "developer".

HIS HONOUR: This is an application, unusual in my experience, in which the Court reviews a "Notice of Non-Party Disclosure" issued by the appellant to the Warehouse Group (Australia) Propriety Limited seeking production of documents in a schedule including the following:

A copy of the full document outlining the nominated party's departments, and subcategories of goods in each department, which was sent to the Ryan Group or Rokay Pty Ltd in about April or May 2003. A copy of part of the document is attached and marked "A"

June 2003 to September 2004. Monthly sales figures for the nominated party's store at lot 7 (SP107050) 107 Ferry Road, Maryborough ("Premises") for each department and sub-category of goods for the period June 2003 to September 2004

The Warehouse Group, as it was entitled to do, by its solicitor's letter of 8th of October 2004 objected to produce the documents. That objection has been accepted in respect of the categories of documents sought other than those referred to above. The way the rules work in the circumstances, if the appellant wished to proceed with its request it was obliged to bring the matter before the Court. The issue has been whether the documents sought are directly relevant to issues in the appeal.

The notice of non-party disclosure reads as follows:

"The allegation in the pleadings to which the documents are relevant is as follows -
Paragraph 11(b) of the Amended Notice of Appeal states:
The Negotiated Decision Notice contravenes section 3.5.14 of the Integrated Planning Act in that:

i.it compromises the achievement of the desired environmental outcome 1 in section 2.2 of Part 2 of the Maryborough City Plan;
ii.it is inconsistent with the intention in the City Plan for development of Local Area 2 - City Centre in which the site is located;
iii.it is inconsistent with the railyards development area precinct (in which the site is located) in that:

(A) The Warehouse's retailing extends beyond bulky
goods retailing;

(B) it detracts from achieving the intention stated
in respect of sub-precinct 7 (Major Shopping
Complex Precinct);

iv.it is inconsistent with the Railyards Redevelopment Precinct Code in that the Site does not have a positive impact on the streetscape and detracts from the achievement of vehicular and pedestrian linkages;
v.it is inconsistent with the City Plan;
vi.there are insufficient planning grounds to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Woolworths Ltd v Maryborough City Council

Details

AGLC: Woolworths Ltd v Maryborough City Council [2004] QPEC 70
Case: [2004] QPEC 70
Decision Date: 15/10/2004

CaseChat Overview and Summary

In the matter of Woolworths Limited v Maryborough City Council, the appellant, Woolworths Limited, sought production of documents from The Warehouse Group (Australia) Proprietary Limited, which was not a party to the proceedings but was a competitor of Woolworths. The documents in question were related to sales figures and departmental information for a property leased by The Warehouse Group and operated by Rokay Pty Ltd. Woolworths argued that these documents were relevant to the appeal against a planning decision made by the Maryborough City Council, which had granted Rokay Pty Ltd approval to use a portion of the Warehouse for retail purposes. The central issue before the Court was whether the documents sought by Woolworths should be produced, given their confidential nature and the fact that the documents were from a non-party who had objected to their production.

The Court had to determine if the documents were directly relevant to the issues in the appeal and whether, despite their confidential nature, they should be disclosed in the context of a planning case. The Court considered the precedent set by Fielder Gillespie, which provides a framework for the protection of sensitive information while balancing the need for disclosure in legal proceedings. The Court also had to consider the commercial relationship between The Warehouse Group and Rokay Pty Ltd, and whether this impacted the nature of the disclosure order that should be made. Ultimately, the Court found that the documents were relevant to the issues at hand and ordered their production, subject to a Fielder Gillespie order to protect the sensitive information.

The Court's reasoning was that the documents in question were similar in nature to those provided by The Warehouse Group to the Council during the planning approval process, and therefore, their production was necessary to fully understand the implications of the approved retail use. The Court also noted the potential for the retail activity to exceed the approved 60 square metres and thus deemed it important to review the actual operations conducted by The Warehouse Group. The order made was in line with the draft agreement between the parties, which included provisions for the documents to be provided in electronic form to Woolworths' expert. This decision allowed for the necessary information to be shared while protecting the confidential aspects of the documents.

Orders